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IN THE PESHAWAR HIGH COURT,

PESHAWAR.
[Judicial Department].

Cr.Misc.BA No.2305-P/2018

Bakhtiar son of Said Akbar,

r/o Pakha Ghulam, Peshawar.

Petitioner (s)
VERSUS

The State etc.

Respondents

For Petitioner :- Mr. Bakht Nawaz Khan, Advocate.

For State :- Mr. Wajahat Hussain, Advocate.
For complainant:- Nemo.
Date of hearing: 12.11.2018

ORDER

ROOH-UL-AMIN KHAN, J:- Petitioner Bakhtiar, seeks

post arrest bail in case FIR No.813 dated 26.09.2018,
registered under sections 496-A and 496-B PPC, at Police
Station Saddar, Mardan.
2. The prosecution case is that on 21.09.2018 at
15.10 hours, complainant Ziarat Khan made a report to
local police that some 19 years back his marriage was
solemnized with Mst. Sabaz Pari and from their wedlock
during 10/11 years, three children i.e. (two sons and a
daughter), were born. He then proceeded to Saudi Arabia
for earning livelihood. He alleged that in the year 2010-
2011, his nephew Bakhtiar (the petitioner) developed illicit
relationship with his wife Mst. Sabaz Pari, as a result, she
eloped with him, leaving behind her children. That due to
disgrace and shame he kept mum and made no report in
Police Station and that now he is fully satisfied that his
wife has eloped with the petitioner. His report was
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incorporated in Daily Diary No.8 dated 21.09.2018. An

Inquiry under section 156 (3) Cr.P.C. was initiated. On
27.09.2018, complainant recorded his statement under
section 164 Cr.P.C. in which he besides the petitioner, also
charged Mst. Sabaz Pari, on allegation of keeping illicit
relation with petitioner and that as a result of the illicit
relation two kids have been given birth by Mst. Sabaz
Parai, hence, this case.
3. Arguments of learned counsel for the parties heard
and record perused.
4. Section 496-B PPC defines fornication and
provides its punishment. For the sake of convenience and
ready reference the same is reproduced below:-
“S.496-B Fornication:- (1) A man and a woman
not married to each other are said to commit
fornication if they willfully have sexual
intercourse with one another.
(2) Who ever commits fornication shall be
punished with imprisonment for a term which
may extend to five years and shall also be liable
to fine not exceeding ten thousand rupees.”

5. Section 203-C Cr.P.C. provides a proper procedure

and mechanism for taking cognizance of an offence under
section 496-B PPC. For the sake of convenience and
guidance it is reproduced below:-
“S.203-C. Complaint in case of fornication:- (1) No
Court shall take cognizance of an offence under
section 496-B of the Pakistan Penal Code, except on a
complaint lodged in a Court of competent
jurisdiction.
(2) The Presiding Officer of a Court taking cognizance
of an offence shall at once examine on oath the
complainant and at least two eyewitnesses to the act of
fornication.
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(3) The substance of the examination of the complainant

and the eyewitness shall be reduced to writing and shall
be signed by the complainant and the witnesses, as the
case may be, and also by the Presiding Officer of the
Court.
(4) If in the opinion of the Presiding Officer of a Court,
there is sufficient ground for proceeding, the Court shall
issue summons for the personal attendance of the
accused.
Provided that the Presiding Officer of a Court, shall
not require the accused to furnish any security except a
personal bond, without sureties, to ensure attendance
before the Court in further proceedings.
(5) The Presiding Officer of a Court before whom a
complainant is made or to whom it has been transferred
may dismiss the complainant, if, after considering the
statements on oath of the complainant and the witnesses
there is, in his judgment, no sufficient ground for
proceeding and in such case he shall record his reasons
for so doing.
(6) Notwithstanding the foregoing provisions or
anything contained in any other law for the time being in
force no complaint under this section shall be
entertained against any person who is accused of Zina
under section 5 of the Offences of Zina (Enforcement of
Hudood) Ordinance, and against whom a complaint
under section 203-A of this Code is pending or has been
dismissed or who has been acquitted or against any
person who is a complainant or a victim in a case of
rape, under any circumstances whatsoever”.
The mandatory provisions of section S.203-C Cr.P.C. have
not been complied with, nullifying all the proceedings to
the extent of section 496-B PPC. In this view of the matter,
section 496-B PPC is straightaway deleted from the FIR
notwithstanding the confessional statement of petitioner,
authenticity and voluntariness of which is yet to be
determined during trial, as the petitioner has been shown
arrested on 25.09.2018 and his alleged confession has been
recorded on 29.09.2018 i.e. on the 5th day of his arrest. As
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regards section 496-A PPC, complainant in his statement

under section 164 Cr.P.C. has charged both the accused for
keeping illicit relation. He has not specifically charged the
petitioner for enticing or taking away his wife with intent
that she may have illicit intercourse with him, which are
the essential ingredients to constitute the offence under
section 496-A PPC. Even otherwise, punishment provided
for the offence under section 496-A PPC does not fall
within the Prohibitory Clause of Section 497 Cr.P.C. and
in such like cases grant of bail is a rule and refusal thereof
an exception. On the face of record, there is no exceptional
circumstance to clog the way of grant of bail to the
petitioner.
6. For the reasons discussed above, this petition is
allowed. Accused petitioner is admitted to bail provided he
furnishes bail bonds in the sum of rupees two lac with two
sureties each in the like amount to the satisfaction of
learned Illaqa Judicial Magistrate/MOD concerned.
7. Before parting with the order I deem it appropriate
to mention here that this Court has taken serious notice of
the conduct and highhandedness of Investigation Officer,
who has pre-decided the fate of legitimacy of two minor
innocent children by placing their photographs on file with
a foot note of “ . The extra labour done by the
Investigating Officer coupled with the above declaration,
speaks volumes about his conduct and interest in the case
and further indicates that there was something black in the
bottom. The I.O. has placed on file photographs of the lady
accused and her two kids with absolute findings that these
are “the illegitimate children” of Mst. Sabaz Pari and
petitioner. When there was no DNA test of the kids with
the petitioner or any other concrete proof in this regard, on
mere allegations the Investigating Officer should not have
passed such uncivilized verdict, particularly, playing with
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the future and lives of the kids. The job of the Investigating
Officer is only to collect evidence and not to give any
findings. It is the Court to decide the case in light of the
evidence recorded in the Court. The Investigating Officer
by no stretch of imagination and under no law and
authority was suppose to place pictures of the kids and
their mother on file and quoting them with stigmatized
words, particularly, in cases involving human dignity. The
I.O. is warned to stop this type of practice and remain
careful in future. He is further directed to remove the
photographs of lay and her kids from the Judicial file and
delete the un-parliamentary findings from the record.
8. Copy of this order be placed before the worthy IG
(Investigation) Khyber Pakhtunkhwa and SP, Mardan, who
shall ensure the removal of the pictures of Mst. Sabaz Pari
and her kids from the file, with intimation to this Court.
Besides, strict legal action be taken against the
Investigating Officer and other officials who have made
extra labour for tarnishing the dignity and future of the
kids.
Announced:
12.11.2018
Siraj Afridi P.S. JUDGE

SB of Hon’ble Mr. Justice Rooh ul Amin Khan.